A Doctor's Liability
A professional who is paid for his services is generally liable for any damages or loss that occurs as a result of the service or even advice that he provides.[1] On the other hand, a professional who made a mistake but was not paid for his services is generally exempt from having to pay for any damages that might occur.[2]
A doctor, however, is almost always exempt from professional liability. This is because our sages made an exception to the rule of professional liability for doctors so that they should not hesitate to treat those who are ill.[3] In fact, a doctor who is able to treat one who is ill is not permitted to abstain from doing so due to a fear of misdiagnosing the patient or otherwise making a mistake in the course of treatment.[4] Indeed, a doctor who refuses to treat someone is considered to be a murderer.[5] As such, a doctor who examines a patient and fails to detect cancer and the like, cannot be held responsible or liable in any way for the oversight. So too, a doctor who prescribes the wrong medication or dosages is not liable for any resulting damage or injury. This exemption from liability extends to the entire medical profession including ultrasound technicians, radiologists, and nurses.[6]
Nevertheless, a doctor that was clearly negligent or otherwise careless will be held accountable “at the hands of Heaven” for the damage he caused. Even in this instance, however, a doctor will usually be exempt from having to pay for any damages. A layman who rushes to assist in an unexpected emergency situation, such as by performing the Heimlich maneuver on one who is choking, providing first aid at the scene of an accident, or administering medication to one who is ill, will also not be liable for any damage, injury, or even death that might result of his mistaken treatment. Here too, the sages didn’t want anyone to be deterred from providing emergency medical care when needed, even though the outcome of such spontaneous and amateur care cannot be assured.[7]
It goes without saying that a doctor who was not licensed or was otherwise unqualified for the procedure he performed will be liable to compensate the patient, just like any other act of negligence or situation where one person knowingly injures another.[8] So too, a doctor who made a serious mistake as a result of not having consulted with another medical professional when he should have, may be responsible for any damage or injury that occurs.[9] A doctor who makes a mistake that is common or that could have easily been made by another doctor will usually not be held liable. However, if the mistake or damage was the result of laziness or is something that no competent doctor would have done, then such a doctor will be liable to pay for any damage caused.[10] We are taught that when God decrees illness upon a person, He also decrees the time and date that the person will recover and which doctor and medication will lead to the recovery.[11]
[1] CM 306:6; YD 336:1.
[2] Bava Kamma 99a.
[3] Tashbetz 3:82.
[4] Shach, YD 336:1; Taz, YD 336:1.
[5] YD 336:1.
[6] Shevet Halevi 10:294.
[7] Chatam Sofer, OC 177.
[8] YD 336:1.
[9] Tashbetz 3:82.
[10] Aseh Lecha Rav 3:30.
[11] Avoda Zara 55a; Tzitz Eliezer 13:56:2.